Determination following examination of facts in Her Majesty’s Advocate v Paul Francis Ward

At the High Court in Glasgow on 27 February 2015, Lord Matthews acquitted Paul Francis Ward of the murder of Jean Campbell following an examination of facts.

The following determination was read out by Lord Matthews in court:

“Paul Francis Ward has been indicted on a charge of murder. The charge is that on 13 December 2013 at Cranhill Park, Cranhill, Glasgow, he assaulted Jean Campbell, born 9 September 1960, deceased, and did repeatedly strike her on the head and body with a dog lead and, by means unknown to the Prosecutor, inflict further injuries upon her and he did murder her.

At the outset I would like to offer my condolences to Mrs Campbell’s widower, her family and friends, who have doubtless found it difficult to come to terms with her death in the dreadful circumstances disclosed in evidence.

The case called before me ostensibly for a diet of trial on 9 February 2015 at the High Court of Justiciary sitting in Glasgow. At that diet I was presented with reports by two eminent psychiatrists who opined that the accused was unfit for trial by reason of mental illness, all in terms of Section 53F of the Criminal Procedure (Scotland) Act 1995. Both Mr Findlay, who appeared for the accused, and the advocate depute moved me to discharge the trial diet and fix forthwith an examination of facts under Sections 54 and 55 of the 1995 Act.

The reports were very clear in their terms and there was no dispute about the accused’s mental condition. I had no difficulty in finding that he was unfit for trial by reason of it.

Where that is the case there are a number of options. One is for the Crown to withdraw the libel altogether but that would be unrealistic in a charge as serious as this. Another would be to move to desert the diet pro loco et tempore, in other words to discontinue proceedings for the time being with a view to re-indicting if and when the accused became fit to stand trial. In this case, however, the indications are that the accused’s condition is unlikely to change for the foreseeable future and the adoption of that course would mean that both he and the other interested parties, notably the family of the deceased, would be left in a state of Limbo for an indefinite period.

That was the situation which confronted parties before the introduction of the procedure known as an examination of facts. A person who was unfit for trial by reason of mental illness might spend years in hospital with the charge hanging over him and without any judicial consideration of the evidence. The family of the deceased would be unable to reach a state of closure and if and when a trial ever took place the recollections of witnesses would undoubtedly be dimmed.

The reform allows a Judge or, in a summary case, a Sheriff, to assess the evidence at a hearing where witnesses are examined under oath as if in a trial. It is important to remember, however, that the proceedings are not a trial. The accused will probably not be present and even if he were he could not, ex hypothesi, contribute meaningfully. In a summary case a Sheriff would hear the evidence without a jury so to that extent the proceedings are similar but in a solemn case there will be no jury at an examination of facts and the assessment of the evidence will thus be undertaken by a Judge in the High Court or, in the Sheriff Court by a Sheriff sitting alone. The evidence is therefore not going to be subject to the scrutiny of 15 people of varying backgrounds, a scrutiny which has been the cornerstone of our system of criminal justice in serious cases.

It is noteworthy that at an examination of facts the court cannot convict an accused. It may determine that he committed the acts or made the omissions referred to in the indictment and if so then certain consequences will follow but if he recovers then it will be open to the Crown to re-indict so that matters are eventually decided, in a serious case, by a jury.

On the other hand, the court may acquit the accused. He will not necessarily be free to go since there may be a requirement for his detention in respect of his mental health but the criminal proceedings will be at an end just as if he had been acquitted by the verdict of a jury.

Judges are used to dealing with submissions that the evidence led in a trial is insufficient as a matter of law to convict an accused and that there is no case to answer. In dealing with such submissions the judicial process is effectively to carry out an assessment which is largely quantitative. In a case such as this, however, the assessment of the evidence is qualitative. As I have said, that assessment is normally left to a jury in a serious case but the test for the fact finders in trials and examinations of facts is exactly the same. As is made clear in Section 55(1) of the Act, for the court to find that an accused did the act or made the omissions referred to in the indictment or complaint as the case may be, it has to be satisfied of that beyond reasonable doubt. The burden of proof is on the Crown. If not so satisfied then the court’s duty is to acquit. In any case a judge has to carry out his or her function in accordance with his or her judicial oath, without fear or favour, irrespective of whether the determination, whatever it is, finds favour with either party or with any particular section of the public.

Before determining that an accused committed the relevant acts or made the relevant omissions, it must also be satisfied on the balance of probabilities that there are no grounds for acquitting him. That is intended to deal with the situation where it is alleged that the accused was not criminally responsible for the acts or omissions because by reason of mental disorder he was unable to appreciate the nature or wrongfulness of the conduct, in terms of Section 51A of the Act. That concept was formerly known as insanity, a concept which had particular legal connotations not entirely congruent or co-extensive with medical or popular understanding of the term. The burden of proving that is on the defence. That issue is not raised in the present proceedings but there has been lodged a special defence under Section 51B of the Act to the effect that if the accused committed the acts his responsibility was diminished by reason of abnormality of mind which substantially impaired his ability to determine or control his conduct. The burden of proving that is also on the defence. I will deal with this at a later stage but it has to be said that it is very much a fall- back position for the defence, their primary position being that the Crown have failed to discharge the burden of proof which is incumbent on them.

It might be helpful to call to mind what the phrase beyond reasonable doubt entails. As is said to juries day and daily, the phrase means just what it says. A reasonable doubt is not some fanciful or speculative doubt but it is one based on reason. It is often said, and this is as good a definition as any, that a reasonable doubt is the sort of doubt which would make one pause and think again in the conduct of one’s own affairs. If that is the situation in this case then an acquittal must result. If I have no such doubt then I must determine that the accused committed the acts set out in the indictment. It would not be enough to find that there was a degree of suspicion hanging over the accused or even that he probably committed the acts. Nor is this a whodunnit or an exercise in working out which of a number of candidates is the most likely one. It will not do simply to ask if the accused did not do it then who did.

There are really three questions which I have to consider. It may not matter particularly in which order I deal with them but they are as follows.

Have the Crown proved beyond reasonable doubt that Mrs Campbell died as the result of a murderous attack? If not, did she die as the result of an attack which should be categorised as culpable homicide?

Have the Crown proved beyond reasonable doubt that the accused was the attacker?

If he was the attacker, have the defence proved on the balance of probabilities that he was suffering from diminished responsibility?

With that preamble I turn to the circumstances. Considerations of time mean that I will not rehearse all of the evidence. Such an exercise would, in any event, be futile and time consuming but I have considered all of the evidence as well as the excellent submissions of Counsel. The fact that I do not mention a piece of evidence is of no significance for the purposes of my determination.

The case is a circumstantial one. That does not necessarily mean that the evidence is sub-standard but in such a case it is very important that all of the evidence is assessed. That is the exercise which I have undertaken.

CCTV footage showed the deceased walking on Bellrock Street with her dog Kai, a young German Shepherd, at 2230:43. She had plainly just left the home which she shared with her husband and was walking the dog, as was her habit when he worked night shift, which he was doing that night. Her walk would take her in the direction of the disused play park where she was later found. She was never picked up again on CCTV and I find that she never returned home. She was often seen out with the dog, which was difficult for her to control. One witness indicated that the dog effectively would take her for a walk and I have no problem in accepting that evidence. The dog would not always come back if let off the lead and I accept the evidence from Mr Campbell, the deceased’s husband, that he would be let off the lead in the play park, that play park having a gate which could be closed. On occasions she would walk the dog past the park and visit her brother in law at 17 Crowlin Crescent but it is unlikely that that was her intention that night. It is difficult to be sure whether or not she walked past the play park. She was dressed in pyjamas, a coat, socks and flip flops, the night was wet, windy and fairly miserable and it is reasonable to assume that she would not have wanted to be out for an extended period or walked past the park but it is feasible that the dog could have taken the decision out of her hands.

Her husband came home from night shift about 0735 to 0740 and found the house unoccupied with some of the lights on. He assumed that she had taken the dog out and went to look for her. He heard the dog barking and tragically he found the deceased in the play park. He thought she might have been breathing and that her body was still warm, although her legs and head were frozen, as he put it, but I am satisfied, principally on the evidence of the paramedic Doreen Fulton, who attended shortly afterwards, that she had been dead for at least some hours. She arrived on the scene at about 0758 . The body was cold, the hands quite purple and the jaw quite stiff. There was possible post mortem lividity. Attempts at resuscitation failed and death was pronounced at 0805. The deceased was naked from the waist down, her lower clothing, socks and flip flops being found nearby in the play park.

A post mortem examination was carried out and evidence was given as to this by Dr Marjorie Turner, a vastly experienced pathologist. Death was certified as a consequence of blunt force trauma of the head and chest. She had a total of 11 fractured ribs, possibly the result of blows or stamping. There was bruising to the scalp, forehead, nose and eyes reflecting multiple blows and/or impacts and Y-shaped bruises to both cheeks as well as a patterned bruise on the left cheek, bruising on the mouth in keeping with pressure or blows and bruising along the left side of the jaw. There was a series of injuries across the suprapubic area and down the front/inner aspect of both thighs. On the evidence, I have no difficulty in finding that these were caused by the dog lead, which was found nearby. Dr Turner performs hundreds of post mortem examinations each year and has never seen injuries like these before. She estimated a minimum of 15 blows across the pubic areas and thighs, it being impossible to estimate how many others there were. The Crown relied heavily on the idiosyncratic nature of these injuries, as I shall come back to, as well as on Dr Turner’s agreeing that the infliction of such blows might potentially cause strain to the assailant’s arm. There was extensive bruising to the arms, legs and feet, some of which could be the result of gripping but which could be defensive injuries and there were a number of other abrasions and lacerations. There was a fracture of the left femur which Dr Turner found difficult to explain. She agreed with Mr Findlay that it might be a twisting injury. I can envisage that sort of thing happening as a result of trying to control a boisterous dog but it is not necessary to come to a firm conclusion about it. There were some small bruises and lacerations in the vagina and rectum. Dr Turner’s report indicated that they might be the result of forcible penetration and her position was that she advised that they should be further examined. She believed that that was done but I heard no evidence about the results. The Crown did not suggest that there was any sexual assault or motivation but the fact that these injuries were present, taken along with the removal of the lower clothing, is a factor which I have to take into account when considering possible motivation for the assault.

Microscopy indicated only focal traumatic injury consistent with blunt force trauma but its significance in relation to the cause of death was uncertain. However, Dr Turner’s opinion was that the brain injury was very likely to have produced unconsciousness, a factor relied on by Mr Findlay.

It is not entirely clear what the mechanism of death was. The injuries would not necessarily have been fatal in other circumstances. One possibility was smothering. There were no diagnostic signs of that but that did not rule it out. Another possibility was that she developed hypothermia while unconscious.

Dr Turner described the attack as an extensive, sustained and forceful assault. I accept that evidence and while the exact mechanism of death is not clear I am satisfied beyond reasonable doubt that Jean Campbell was the victim of a brutal, callous attack where the assailant did not care whether she lived or died, leaving her badly injured in the cold. Leaving aside any question of the mental health of her attacker, whoever that was, for the moment, I find that her death was the result of a murderous attack.

I may as well deal at this point with the question of the accused’s mental health, proceeding on the assumption for the moment that the Crown succeeded in proving that he was the assailant. It is very much a subsidiary question in the circumstances and I can deal with it shortly. The burden of establishing diminished responsibility is on the defence, as I have indicated. I think it fair to say that Mr Findlay in his argument recognised that the evidence in support of diminished responsibility was relatively weak. The evidence came principally from Dr Isobel Campbell. She spoke of the potential for further exploration of the matter, which would entail looking for example at such things as evidence of the accused’s behaviour around the time, but she drew up short of giving evidence from which a positive affirmation of diminished responsibility could be made and I am satisfied that it is not established.

I emphasise again, however, that this was very much a subsidiary position on the part of the defence, and I turn to look at the issue which principally divides the parties. That is the second question which I identified, namely whether the Crown have proved beyond reasonable doubt that the accused was the attacker.

The principal parts of the Crown’s submissions can, I think, be summarised as follows.

There was no obvious reason for the attack but the use of the dog lead was unusual. There was evidence of a motive on the part of the accused, which was linked to that dog lead. According to Yvonne Leyden he had expressed a desire to buy the deceased’s dog and had said something like “See her I hate her, she is always hitting that dog” and he expressed revulsion at his perception that she mistreated it, particularly by hitting it with the lead, saying something like “How would she like it if I did that to her” or “How would she like it if I took the lead off her and hit her with it”. That took place in about August or September 2013, according to the terms of production 92, a police statement adopted in part by Mrs Leyden, who said she was shocked by his comments because he was normally quiet. It was suggestive of rumination on his part and tied in with the unusual mechanism of the assault. When he was interviewed and this comment by Mrs Leyden was put to him he reacted by staring at the interviewer and his colleague, no-one having mentioned the use of a lead until then.

The accused was in Mrs Leyden’s flat on 13 December, in her son’s bedroom, with her son Thomas, his girlfriend Shelby McPhail and two others Gordon McCord and Bruce Owens. The latter two departed the scene as did the accused who said he was going home for his dinner. The flat is in 5 Crowlin Crescent and the front window looks onto Crowlin Crescent at a point near the car park of the Beacon Centre and behind which is the play park. It is a matter of yards from the flat to where the body was found.

At some point that night Mrs Leyden heard a woman shouting and screaming as well as a dog barking. That sound could have come from the area of the play park. When she heard it she spoke to Thomas McNicol, the father of her son. Mr McNicol had visited her and was watching television with her. He told her not to be nosey and according to her she sat for a short time before going in to her son’s bedroom to mention it to those who were in there. Although she had given different accounts, on one view of her evidence this was about 2230, when she went to the bedroom the accused was not there and she actually admitted him to the block of flats perhaps two minutes or so after she heard the noise. She had thought long and hard about the matter and had been interviewed a number of times by the police. In any event his arrival was close in time to the noise. There was evidence from a witness Lisa Aitken who heard a dog barking in the general area sometime between 2257 and 2312. There was CCTV footage of an individual coming to the front door at 2306 or thereby. With the exception of an elderly lady who was unlikely to be receiving visitors, none of the other occupants had a visitor that night and the person on the CCTV could realistically only have been the accused. This meant that he had the opportunity to have committed the assault. Thomas Leyden could not remember if he was in the bedroom when his mother came in, the evidence from Shelby McPhail that he was in the bedroom was not to be accepted, she being an unsatisfactory witness whose memory was suspect in other regards, and the accused himself, when he had spoken to the police as a witness, did not remember her coming into the bedroom. I should conclude that he was not in the flat when she heard the noises but even if I thought that he was in the flat when the noises were heard that was not fatal to the Crown case since no one could say whether the screams and shouts and barks were at the beginning of the attack, were during it or were after the attacker had left.

According to Yvonne Leyden, when the accused arrived he was out of breath, and had one of his wrists at an odd angle as though there was something up his sleeve. This, I think, is why the advocate depute asked the pathologist if the use of the lead to administer a number of blows might lead to the arm being strained. It was accepted that, apart from that, there was no evidence of any sign that he had been involved in an incident, Thomas Leyden and Shelby McPhail in particular saying in effect that his demeanour was normal and there were no marks or dirt or mud on him or his clothing. He sat on a cream sofa and left no mark on it. All of this did not necessarily exculpate him however, the area round the body being mostly tarmac with some growth on it.

The accused’s conduct after the event was significant. He told Thomas Leyden that he had seen the deceased. Whether he told him that on the Saturday or later did not matter. On the evidence, including the reaction of Thomas Leyden to the revelation, the accused must have been talking about the night of the murder. That was what Leyden thought he was talking about and why else would Leyden have advised him not to tell the police about it? The accused made no mention of seeing the deceased to the police until his 4th statement, on 26th February 2014.

He never gave a consistent account of his movements, giving a range of possibilities for the route he took on his way back to the Leydens’ flat that night. An examination of CCTV footage did not find him on any of the routes, although not all parts of the journeys would necessarily be covered by CCTV. It was suggested to be untrue that the accused met the deceased near the 5 a side Astroturf pitch, as he said, since the deceased would not have gone down there. The accused knew well what night he was talking about, the issue having preyed on his mind, as was shown by the fact he provided a list of questions for the police. When he was asked directly by a witness Margaret Callanan whether he had committed the offence he gave no response and he put his head down when she suggested that if he did not do it he must know something about it.

The advocate depute also drew my attention to a passage of evidence to the effect that the accused had made certain remarks to his mother in a recorded telephone conversation. These were along the lines that he had been hearing voices in his head, that he might have hit the deceased once but that he could not remember. I can say now that I attach no weight to those remarks. In the first place they were made four days or so after the accused had been described as hallucinating and was plainly psychotic. Dr Campbell gave unchallenged evidence, which I accept, that from a medical point of view it was difficult to place much reliance on what he had to say or separate what was real from what was unreal. Furthermore, the content of the conversation did not in any event square with the reality of what happened to the deceased.

The defence position in a nutshell was that the evidence led was quite insufficient to discharge the heavy burden which lay on the Crown. It did appear that the deceased was struck with the dog lead. The locus was an unkempt area, it was clearly dirty and the night was wet and windy. The deceased had mud under her fingernails and toes and the area was covered in dog excrement on the evidence. A number of witnesses had given contradictory statements, perhaps an indication of having been influenced by others, the prime example being Yvonne Leyden. Her evidence was given with the benefit of hindsight, as was that of her son Thomas. She was totally unreliable. The accused was only one of a number of people who would object to the deceased’s treatment of her dog. He had expressed an intention to buy the dog which was fanciful but clearly well motivated. There was nothing in his asking how she would like to be struck by the lead. Many people would say that sort of thing. There was no evidence that he was aggressive or confrontational or went to argue with the deceased or bore her ill will. The dog lead was being carried by the deceased and was available as a weapon for anyone who confronted her that night. There was evidence in the genital injuries and the removal of the lower clothing that the attack was sexually motivated.

There was no evidence that the figure on CCTV approaching 5 Crowlin Crescent entered the building but even if it was the accused there was no evidence where he had come from. The starting point of his journey was not established.

Assuming Yvonne Leyden heard the sounds she spoke of and that they were related to the deceased being attacked, the overwhelming evidence put the accused in Thomas Leyden’s bedroom at that time. The deceased may not have intended to stay out very long but who knows what happened with the dog. If the screaming and shouting emanated from the deceased, as appeared to be the Crown case, then she was still alive and screaming when the accused was in the flat. If she was rendered unconscious as Dr Turner said was likely, then the sounds must have been before the attack or while it was going on. They could not have been after the attack had ceased. If the accused was let into the flat by Yvonne Leyden shortly after the screaming as the Crown asserted, she would surely have asked him if he had seen or heard anything. The fact that she said she did not was significant.

In this connection Mr Findlay relied on the evidence of Shelby McPhail whose position had been consistent throughout her statements and her evidence. There was no reason to dismiss her evidence that the accused was in the flat at the material time and no suggestion that she was covering up anything. The fact, if it was a fact, that the accused was out of breath, was of no significance. The evidence showed that he ran everywhere.

The accused had not gone home to change his clothing, going straight to the Leydens’ flat. There were no marks on him or on the settee and he was his normal self. There was no suggestion of any bites or scratching by the dog as one might have expected if his owner was being attacked.

The suggestion that he might have a sore arm from wielding the lead was scraping the bottom of the barrel.

Nothing could be taken from the evidence of Mrs Callanan or his demeanour during the police interview.

It was not until days after the event that he said he saw the deceased. He could easily have confused the occasion he saw her.

It was possible that he was not picked up on CCTV. Perhaps the camera which might have done so was looking the other way or perhaps the occasion he was talking about when he was in the park and saw the deceased was another night altogether. There was no basis for the Crown’s suggestion that it was untrue that he saw her near the Astroturf pitch. Even if that part of his account was rejected that went nowhere. If he did see her in the park that night the question remained when that was.

The CCTV did not put him in the park on the night in question and there was no scientific evidence linking him to the crime. His house was bugged for months and he made no admission of any kind.

At best for the Crown he could have been in the park at or about the material time, at some point between her entering the park, shortly after 2230 hours and his entering 5 Crowlin Crescent at about 2306.

I mean no disrespect to either the advocate depute or Mr Findlay if I have not mentioned any aspect of their submissions which they regard as material but at the end of the day the significance of the evidence and the inferences which ought to be drawn from it are matters for me.

I am driven to a number of conclusions on that evidence.

In the first place I am satisfied that the figure on CCTV approaching 5 Crowlin Crescent and first seen at 2305:52 was the accused. That would tie in with the evidence referred to by the advocate depute from the owners of the flats in the block, the evidence of those who were in the Leydens’ flat and what I glean from the statement given by the accused as a witness on 26 February 2014, Crown production 77. The evidence from Detective Sergeant Mackenzie was that the person on the footage was jogging and I accept that. Although there are some indications to the contrary in that statement, I am satisfied that during it he was describing his movements on 13 December 2013 and his position was that he arrived at the flat sometime before 11pm, although, in an earlier statement on 31 December 2013 he said that his best guess was that he arrived around 9pm to 1030pm. This apparent inability to remember times is reflected in his apparent inability to remember the route he took either from his own house or from that of his friend Christopher Cunningham. It does not matter particularly whether he came from his own house or Mr Cunningham’s, since the streets where they are situated are close together and the choice of routes broadly the same. The evidence however is that the accused was in the Leydens’ flat virtually every day and I attach no significance to the apparent lapses of memory. There was evidence that one of the routes at least involved crossing open ground to some extent and that there were no cameras on the most direct route between Langness Road and Toward Road, where the accused and Mr Cunningham respectively lived, and Crowlin Crescent except for that numbered 21. Detective Sergeant Gordon Mackenzie indicated that the cameras in blue on Crown production 31, a map, were not fixed. These included number 21 and for that matter number 1, on Bellrock Street just above Skerryvore Road. The accused was not picked up on any camera going home earlier that evening, as I accept he undoubtedly did. Mr Mackenzie was unable to say whether or not the accused passed camera 21 and said that there were only certain aspects of the CCTV to which he could speak.

What all this amounts to in my opinion is that the lack of any CCTV footage of the accused that evening is of no consequence. He must have come from the general area of his home, whatever he did thereafter.

There is evidence from which it is clear that the accused said he saw the deceased walking her dog. Was he referring to the night of 13 December 2013 or some earlier occasion? Looking principally to production 77, the statement he gave on 26 February 2014, his position might be said to be ambiguous but I am satisfied on a consideration of all of the evidence, particularly his statements when read as a whole and the reaction of Thomas Leyden, that he was talking about seeing the deceased on 13 December.

The Crown relied heavily on the evidence of Yvonne Leyden and contrasted it with that of Shelby McPhail whom the advocate depute described as unsatisfactory and contemptuous. For my part I would not describe either Ms McPhail or Mrs Leyden as contemptuous to any extent but I am afraid that the word unsatisfactory encapsulates at least part of the latter’s evidence and I have no reason to tar Ms McPhail’s evidence with the same brush.

Alarm bells rang almost as soon as Mrs Leyden was asked about the timing of the noises she heard. She said that she thought the time was 2230 but that she got her time wrong. That indicated clearly to me that she had probably been discussing the matter and allowed herself to be influenced. The evidence went on to show that when she was first asked about the events of 13 December, in a door to door enquiry, she made no reference to the shouts and screams at all and indicated that she heard a dog barking possibly between 2000 and 2200. She said that she told the police about the shouts and screams but I cannot accept that. I do not think that in a matter of such importance a police officer would have failed to note that if it had been said.

Her position about what she saw and heard developed as she was spoken to by the police. On 31 December she told the police that she heard a female’s voice screaming and shouting about 2130 hours and that after it she heard a dog bark. She thought she was watching Birds of a Feather at the time but that was much earlier in the evening, between 1900 and 1940 hours. In the same statement she told the police that when she heard the scream her son, Shelby McPhail and the accused were in the house. She agreed with a suggestion by Mr Findlay that over many weeks and months the police had been trying to get her to accept that the accused had not been in the house at the time. In a statement of 25 February 2014 she said that she thought the dog barking might have been a large one and indicated that she went to her son’s room and amongst the people there was the accused, who was sitting on a sofa. She described what he was wearing and said that her son and Shelby were under the blanket on the bed. In a statement the following day she again referred to watching Birds of a Feather and said that when she heard the sounds outside the minute hand on her clock was at 25 minutes to the hour and the woman’s voice sounded mature, that the dog sounded big like an Alsatian and that knowing what she then knew she thought the person shouting and screaming was Jean Campbell. She went on to say in that statement that she now remembered that after that there was a chap at the door and it was the accused carrying a DVD. She agreed that her position vis a vis the accused had become hostile because she thought he was guilty. I do not intend to go into all of her evidence but I should also note that while at one point she referred to the accused’s reaction to the deceased as one of hatred, she indicated in the statement of 26 February 2014 that when he was discussing her striking the dog with the lead he sounded annoyed.

It follows from all of this that I do not regard Mrs Leyden as a reliable witness. Having said all that, the evidence from Mr McNicol, Thomas Leyden and Shelby McPhail was to the effect that she did refer to the sounds outside and went into the bedroom so I am satisfied that she heard something to that effect. The unreliability of her evidence does not assist me in determining whether or not the accused came into the flat before or after she heard it, however. Thomas Leyden could not say one way or the other but Shelby McPhail was clear that he was there when Mrs Leyden came in and that was her consistent position. In a statement of 25 February 2014 for example she said that the accused had come in about 2300, which squares with the CCTV footage, and that about 2330 Mrs Leyden came in and said she had heard screaming, shouting and a dog barking. Whether she was right about the timings or not there was an appreciable gap on that account between the arrival of the accused and Mrs Leyden’s comments about the noise.

The Crown laid stress on the fact that the accused himself did not recall the intervention of Mrs Leyden but on the other hand all the indications were that the people in the flat, with the exception of Mrs Leyden, thought nothing of it at the time, her son, for example, making a remark to the effect that it was a typical Friday night.

If the accused was in the flat when Mrs Leyden heard the screams, then that in my opinion causes substantial difficulty for the Crown. The advocate depute argued that the screams and shouts could have been before, during or after the attack. While in theory that might be so I consider it more likely that it would have been at the beginning, it being perhaps the natural response of a person under attack to shout and scream. There is also the difficulty arising out of the evidence of Dr Turner that the brain injury sustained by the deceased in all likelihood caused her to be unconscious. There was no evidence at precisely what point unconsciousness would ensue but on the whole matter I prefer to hold that the screaming, shouting and barking, which I am prepared to attribute to the attack on the deceased, came at the beginning.

The advocate depute referred to a number of adminicles of evidence, as I have indicated. I can draw nothing from the accused’s reaction to Mrs Callanan. His reaction to the police was at a time when he was confronted with a statement which indicated malice on his part towards the deceased and is as referable to that as to the more particular remark about the use of the lead. I regard it as neutral. The fact that he did not immediately disclose to the police that he saw the deceased is explicable when one takes into account the advice he was given by Thomas Leyden

The use of the lead as a weapon was relied on heavily by the Crown. Whether the accused’s attitude was one of hatred or merely annoyance it is one thing to express an opinion which might be held by many people seeing a dog struck with a lead but quite another to translate that into a murderous attack. The deceased was described as a feisty lady and anyone who attacked her would have been in a position to use the lead which she undoubtedly carried in her hand.

On the other hand, I accept that the accused at least saw the deceased with the dog that night and that all things being equal she would not have wanted to be out particularly long. However, if Mrs Leyden is correct, on one view of her evidence at least the accused came in no more than a couple of minutes after she heard the screams. That would mean that they were heard sometime after 2300. I am of the view that they were at the beginning of the attack so for whatever reason the deceased, whatever her initial intentions were, was still out at that time. The accused could feasibly have seen her and made his way to the flat before the attack took place.

I take account also of the lack of any signs of a struggle on the accused. The fact that he was out of breath is of no account given his habit of running. It was a cold night and one might be expected to jog, as the figure on CCTV was doing. Yvonne Leyden’s description of the position of his hand did not as I recall the evidence, feature in any of her police statements. In any event I do not think that anything turns on it, given that it was a cold night and people often pull down their sleeves in such conditions.

To their credit, a great many hours of work were put into this case by dedicated police officers, including authorised surveillance of the accused’s home, but the result of all of it is, in my opinion at least, a weak Crown case. None of the individual strands on which the Crown rely is compelling. That of itself may not matter as long as the overall picture is clear. There was proof of a possible, albeit tenuous, motive. The accused potentially had the opportunity. There are a number of suspicious circumstances in this case and the accused might have committed the acts referred to in the indictment but that is not the test. I am not satisfied beyond reasonable doubt that he was not in the flat when the screams, shouts and barks were heard. In my opinion it is likely that those noises were made at the beginning of the fatal attack. Neither alone nor in combination do the pieces of evidence relied on by the Crown convince me beyond reasonable doubt that the accused was Mrs Campbell’s assailant. I appreciate that what I have said may not find favour with the family and friends of Mrs Campbell. In this day and age what I have to say may not be the final word on the matter. No doubt the matter can be revisited if compelling new evidence emerges. As it stands, however I can only proceed in the evidence which has been presented to me and discharge my duty on that basis. Accordingly, in terms of Section 55(1)(3) of the Criminal Procedure (Scotland) Act 1995 I acquit the accused.”